Reserved on: 28.05.2018 Delivered on: 27.07.2018 Case :- SECOND APPEAL No. - 169 of 1998 Appellant :- Sukhdev Prasad Respondent :- Smt. Neelam Singh & Others Counsel for Appellant :- M.D.Misra,Dharmraj Chaudhary Counsel for Respondent :- Smt. Anita Tripathi,M.K. Gupta,Manish Kr. Nigam,S.K. Pandey with Case :- SECOND APPEAL No. - 475 of 1998 Appellant :- Sukhdev Prasad Respondent :- Smt. Neelam Singh & Another Counsel for Appellant :- M.D.Misra,Dharmraj Chaudhary,S N Bhatt Counsel for Respondent :- Smt. Anita Tripathi,M.K. Gupta,Manish Kr. Nigam,S.K. Pandey
Hon'ble Siddharth,J.
1. Heard Sri Chandra Kumar Rai and Sri D. R. Chaudhary, learned counsel for the appellant and Sri Manish Nigam and Sri Sanjay Kumar Pandey, learned counsel for the respondents.
2. Second Appeal No. 169 of 1998 is directed against the judgment and decree dated 02.02.1998 passed by Sri Jagdish Prasad, District Judge, Siddharthnagar in Civil Appeal No.43 of 1995 arising out of Original Suit No. 123 of 1987 decreed by the judgment and decree dated 13.03.1995 passed by Sri M. A. Siddiqui, Civil Judge, Siddarthnagar.
3. Second Appeal No. 475 of 1998 is directed against the judgment and decree dated 02.02.1998 passed by Sri Jagdish Prasad, District Judge, Siddharthnagar in Civil Appeal No.44 of 1995 arising out of Original Suit No. 293 of 1988 decreed by the judgment and decree dated 13.03.1995 passed by Sri M. A.
Siddiqui, Civil Judge, Siddarth Nagar.
4. The original suit no.123 of 1987 was instituted by Sukdev Prasad against Smt. Neelam Singh, Noorjahan, Sagar Mal, Jai Prakash Narain Singh and Nazir Ahmad for cancellation of registered sale deed dated 17.04.1986 executed by Sagar Mal, defendant no.3 in favour of Smt. Neelam Singh and Noorjahan, defendant nos.1 and 2 and also for permanent injunction restraining aforesaid defendants from interfering in the possession of the plaintiff, Sukdev Prasad, over house no. 20 shown by letter Aa, Ba, Sa and Da in the plaint map and its appurtenant land, shown by letters 'Sa, Da, Ka and Kha' in the plaint map situated in Mohalla Budh Nagar Town, Tetari Bazar, District Basti (Now Siddharth Nagar), with the allegation that the plaintiff is owner of the house and appurtenant land in dispute and is in continuous possession since the time of zamindari. The disputed house was constructed by his father who has died three years back and he was in possession of the house and sehan in dispute. After abolition of zamindari, the house has settled with the father of the plaintiff under Section 9 of U.P. Zamindari Abolition and Land Reforms Act. Earlier Tetari Bazar was only a Gram Sabha and now it has become town area. In a case under Section 133 Cr.P.C initiated against the plaintiff, Sukdev, he was found owner of the property in possession and proceedings against him were dropped by the competent authority. The house in dispute is old and dilapidated and he applied for sanction of construction plan of the southern portion of the same wherein Sagar Mal, defendant no.3, filed objection claiming ownership of the same on the basis of the sale deed dated 01.06.1960 executed by Bechu Lal in his favour but Bechu Lal never sold the house claiming himself to be the owner in possession of the house in dispute. His father and thereafter plaintiff remained in possession and therefore, sale deed dated 01.06.1960 was executed without any right and title and no title passed over to Sagar Mal through the aforesaid sale deed which was forged and void. The application for sanction of construction plan is still pending. The deceased defendant, Sagar Mal, filed photocopy of forged registration certificate to prove that Sarju and Jangali, sons of Amit Lal Kalwar executed registered sale deed dated 28.06.1948 in favour of Bechu Lal. The aforesaid registration certificate was void and without any right and Bechu Lal never got any title therefrom. Sarju and Jangali also did not execute the deed claiming themselves owner in possession. The boundaries mentioned in registration certificate dated 28.06.48 and sale deed dated 01.06.1960 were different. The deceased defendant no.3, Sagar Mal, executed the sale deed only to harass him and after coming to know about the same he instituted the Original Suit No.192 of 1986, Sukdev Vs. State of U.P. and sought injunction against him from executing any sale deed relating to the suit property and he was temporarily restrained. The appeal preferred by Sagar Mal was dismissed and he was restrained from interfering in peaceful possession of the plaintiff over the property in dispute after registration of the disputed sale deed. Defendant nos.4 and 5, Jai Prakash Narain Singh and Nazir Ahmad, threatened to take forcible possession over suit property and hence suit for cancellation of the sale deed dated 17.04.1986 and for permanent injunction was instituted by plaintiff claiming his title since before the abolition of zamindari. Sarju and Jangali were stated to be outsiders not having property in the village. Sajjid Ali and others were stated to be Zamindars of Gorakhpur city and without their permission no sale could have taken place and therefore, the registration certificate dated 28.06.1948 executed by Sarju and Jangali in favour of Bechu Lal was forged and fictitious and it was never acted upon like the sale deed dated 01.06.1960. After the Panchayat Raj Act was enforced the disputed house was given house no.20 and it had settled with his father and his family.
Smt. Neelam Singh and Noorjahan did not get any right or title through sale deed in dispute since Sagar Mal, their vendor, was never its owner. A notice was given by defendant no.1 and 2 to the plaintiff under section 106 of Transfer of Property Act terminating his tenancy, when he was never tenant in the house in dispute. In Original Suit no. 192 of 1986 – Sukdev Vs. State of U.P., Sagar Mal filed his objection but never mentioned the fact about tenancy of plaintiff in the house in dispute. The defendants cannot make out new case different from their vendor. He has never been tenant of Sagar Mal @ Rs.200/- per month and he cannot be tenant of defendant nos.1 and 2. The name of plaintiff is entered in family register and voter list over the house in dispute.
5. The defendants filed their written statement stating that the property in dispute belonged to Sagar Mal, deceased defendant no.3, who purchased it from Bechu Lal S/o Dudh Nath on 01.06.1960. Bechu Lal purchased the same from Sarju Prasad and Jangali Prasad through sale deed 28.06.1948. Sarju Prasad and Jangali Prasad purchased the same from the zamindars of the village namely, Sajid and Amjadullah vide sale deed dated 17.07. 1941. They denied any knowledge of proceedings under Section 133 Cr.P.C against the plaintiff. Sagar Mal needed money for business therefore he sold the disputed house and appurtenant land in dispute in favour of Smt. Neelam Singh and Smt. Noorjahan vide sale deed dated 02.04.1986, which was not initially registered and was later on registered after orders of the District Judge on 17.04.1986. Tenancy at the rent of Rs.200/- per month was claimed against the plaintiff Sukdev from the time their vendor, Sagar Mal. After service of notice he neither vacated the house nor paid the rent and therefore, the defendants Smt. Noorjahan and Smt. Neelam Singh instituted the Original Suit No.02 of 1997 for recovery of arrears of rent and ejectment of plaintiff Sukdev Prasad. They denied that Sukdev Prasad bonafidely moved application for sanction of map. Sagar Mal objected to the same and the proceedings are still pending. The defendants are not bound by any proceedings under Section 133 Cr.P.C. The boundaries of the house in the sale deed dated 17.09.1941, 1.4.1948, 1.6.1960 and 17.4.1968 are similar.
6. Defendant no.1, 2, 4, and 5 also filed additional written statement stating that father of Sukhdev was resident of village Gaura Bazar, Tehsil Itwa, District Siddharth Nagar and came to Tetari Bazar after abolition of zamindari and took the house in dispute in rent. Thakur Prasad Mishra and Mohan Bhuj were tenants of Sagar Mal before the plaintiff become its tenant @ 200 per month.
7. The original suit no.293 of 1988 was instituted by Smt. Neelam Singh and Smt. Noorjahan against Sukhdev Prasad for possession, after ejectment of defendant from the suit property and also for recovery of arrears of rent and damages for use and occupation and mesne profits @ Rs. 200 per month. It was alleged that Sagar Mal was the owner of the property who sold the same to Smt. Neelam Singh and Smt. Noorjahan and since Sukdev himself wanted to purchase this house, therefore, he had instituted Original Suit No.192 of 1986 claiming a decree of injunction, which is pending. After becoming owners of the house in dispute they demanded rent from Sukdev which become due for more than four months but he returned the notice and did not paid the rent and his tenancy stood terminated on 4.4.1987 and he is a trespasser since then. Defendant Sukdev Prasad repeated the contention raised in plaint of Original Suit No.123 of 1987 claiming owner-ship of the property and vesting of Sehan land and denying the validity of the sale deed executed by Sagar Mal in favour of plaintiffs Smt. Neelam Singh and Smt. Noorjahan.
8. The following issues were in framed Original Suit No.123 of 1987 :-
1. Whether the sale-deed, in dispute, executed by the defendants 3/1, 3/2 in favour of defendants 1 and 2 is liable to be set aside for the reasons given in Para 9 of the plaint ? If so, its effect?
2. Whether the plaintiff is the owner, in possession, of house no.20, shown by letters 'Aa-Ba-Sa-Da' and appurtenant land, shown by letters 'Sa-Da-Ka-Kha'? If so, its effect?
3. Whether the plaintiff has no right to file the suit?
4. Whether the suit is vague and misconceived?
5. Whether the suit is barred by limitation ?
6. Whether the suit is barred by estoppel ?
7. Whether the suit is under-valued and the court-fee paid is insufficient?
8. Whether the court has no jurisdiction to try the suit ?
9. Whether the suit is bad for misjoinder of ?
10. To what relief, if any, is the plaintiff entitled ?
9. The following issues were in framed Original Suit No.293 of 1988 :-
1. Whether the plaintiffs are the owners of the house and appurtenant land, in dispute, vide sale-deed, dated 2-4-86 and whether the defendant is legally the tenant of the plaintiffs? If so, its effect?
2. Whether the plaintiffs are entitled to get Rs.6,106.56p from the defendant as arrears of rent and pendente-lite and future mesne-profits, in the shape of damages, for use and occupation, till possession at the rate of Rs.200/- per mensum?
3. Whether the plaintiffs are entitled to et possession, after ejectment of the defendant, over the house in dispute?
4. Whether the suit is barred by Articles 164 & 165?
5. Whether the suit is barred by time ?
6. Whether the suit is under-valued and the court fee paid is insufficient ?
7. Whether the suit is barred by Section 11 C.P.C ?
8. Whether the suit has not been properly signed, verified and presented ?
9. To, what relief, if any, are the plaintiffs entitled ?
10. Aggrieved by the judgment and decree dated 02.02.1998 parties preferred Civil Appeal No.43 of 1995 (Original Suit No. 123 of 1987 – Smt. Neelam Singh and another Vs. Sukdev and others) and Civil Appeal No.44 of 1995 (Original Suit No.293 of 1988 – Smt. Neelam Singh Vs. Sukdev Prasad) before the lower Appellate Court.
11. The lower Appellate Court stated that the ground for consideration in both the appeals is “Whether Sukhdev is the owner of the house and appurtenant land in dispute or he was of tenant in the house and appurtenant land in dispute of deceased Sagar Mal and after execution of sale deed in favour of Smt. Neelam Singh and Smt. Noorjahan, whether Sukdev is their tenant”.
12. The lower Appellate Court found, after considering the documentary evidence on record, that Zamindar Mohd Amjadullah and Mohd. Sajid Ali executed the sale deed of the disputed house in favour of Sarju Prasad and Jangali Prasad on 20.06.1941 and then Sarju Prasad and Jangali Prasad sold that house to Bechu Lal S/o Dudh Nath on 28.6.1948. Thereafter Bechu Lal sold the same to Sagar Mal dated 01.06.1960 who in turn sold the same to Smt. Neelam Singh and Smt. Noorjahan for Rs.50,000/- on 02.04.1986. The sale deed was registered on 17.04.1986. The lower Appellate Court compared the boundaries mentioned in all the sale deeds and found that it is almost similar in all the documents of sale and it also tallies with the boundaries mentioned in the plaint. The Court has further recorded the finding that the Sukdev has admitted in para 9 (b) of the plaint that Sajjid Ali and others were Zamindar of the village Tetari Bazar and therefore the source of title of the land in dispute stands admitted by Sukdev. Further finding was recorded by lower Appellate Court holding that the Trial Court has given a finding that sale deed executed by Bechu Lal related to the same disputed property and this finding has not been challenged by Sukdev in appeal.
13. The lower Appellate Court also found that when Bechu Lal sold the property to Sagar Mal he delivered possession of the property and there was recital to that effect found in the sale deed. It has also been found that plaintiff failed to prove that his father constructed the house during the period of zamindari and he is living therein ever-since. It was also found in the proceedings under Section 133 Cr.P.C that Sukdev Prasad was not held owner of the land over which he was raising construction. It was only a case of illegal encroachment over the land of town area and it was finally dropped. The lower Appellate Court also found that the house no.20 claimed by Sukhdev Prasad to be his house was not correct since from the documents he was found to be living in house no.100 which was later on changed to house no.98. The finding of the court below was reversed by the lower appellate court. The finding of adverse possession recorded by the Trial Court was also set aside by the Appellate Court on the ground that there was no such plea raised in the plaint of Original suit no.123 of 1987 but the Court below has recorded the same without any justification. Plaintiff Sukdev claimed only possessory title and individual title by way of adverse possession. A large number of cases in this regard were considered by the lower appellate court.
14. Regarding the plea of tenancy set-up in Original Suit No.293 of 2008 by Smt. Neelam Singh and Smt. Noorjahan against Sukdev Prasad, the lower appellate court relied upon the statement of DW-4, Chadhat Singh, who stated that the house in dispute was given to Sukdev in rent in the year 1974-75 and his statement was believed by the Court below. The second ground which found favour with the lower appellate Court was that Sukdev stated that he was having fertilizer shop since 1965 in the disputed house towards south and also had licence and he was also paying sales tax but he could not produce any document to prove his defence. The lower appellate Court also relied upon the inspection report wherein it was recorded that counsel for Sagar Mal informed that he was owner of the house but not in possession. On the ground that the statement of D.W 4, Chadhat Singh was not challenged by Sukhdev in appeal and since he failed to establish his title, the lower appellate court has decreed the suit for arrears of rent and eviction No. 293 of 1988 in favour of Smt. Neelam Singh and Smt. Noorjahan and has dismissed the Original Suit no.123 of 1987 instituted by Sukhdev for cancellation of sale deed in favour of Smt. Neelam Singh and Smt. Noorjahan and for injunction.
15. The above noted second appeals are, therefore, filed before this Court. Both these appeals are listed under order 41 Rule 11 C.P.C before this Court.
16. Learned counsel for the parties have expressed their willingness to argue the Second Appeal No.169 of 1998 on substantial questions of law no.2 and 3 and Second Appeal No.475 of 1998 on the substantial question of law no.1, which are as follows:
“(i) Whether tenancy can be presumed in absence of rent deed and rent receipts and recital in the sale deed, which is the basis of title.
(ii) Whether the plea of adverse possession by way of alternative plea can be decided on the basis of evidence on record even in absence of specific pleadings.
(iii) Whether title of the defendant on the basis of sale deed, which has not been acted upon, can be recognized.”
17. Learned counsels for both the sides have stated that they are prepared to argue both the appeals on the substantial questions of law framed in this appeal and do not want any adjournment of these appeals, which are pending for last about 20 years and have addressed the Court on the questions of law framed above.
18. After hearing the counsels for the parties, it is found that the judgement of the Trial Court and the lower Appellate Court under challenge in Second Appeal no.169 of 1998 do not require any interference. However, the judgement of the lower appellate Court challenged in Second Appeal No.475 of 1998 deserves to be set aside and the judgment and decree of the Trial Court is required to be restored for the reasons to follow.
19. The Original Suit No.123 of 1987 which was decreed by the Trial Court declaring the plaintiff, Sukdev Prasad, as owner of the house in dispute on the basis of adverse possession, was reversed by the lower Appellate Court in Civil Appeal No.43 of 1995 on the finding that the source of title of the land has been admitted from zamindar Mohd. Azmadullah and Mohd. Sajid Ali in paragraph 9(b) of the plaint by the plaintiff himself. Thereafter, the property has been transferred by zamindar in favour of Sarju Prasad and Jangali Prasad on 20.6.1941. Sarju Prasad and Jangali Prasad sold the house to Bechu Lal on 28.06.1948. Bechu Lal sold the same to Sagar Mal on 01.06.1960 and Sagar Mal sold the same to Smt. Neelam Singh and Smt. Noorjahan vide sale deed dated 02.04.1986/ 17.04.1986. Therefore, the lower appellate Court has recorded categorical finding that the property has come in the hand of defendant no.1 & 2, Smt. Neelam Singh and Smt. Noorjahan, through a valid sale deed and therefore, their title is clear.
20. The lower appellate court has also recorded the finding that the boundaries mentioned in all the sale deeds are almost the same as in the last sale deed dated 02.04.1986/17.04.1986 and the plaint map and this finding has not been assailed as perverse finding before this Court. The finding of adverse possession recorded by the Trial Court has been set-aside on the ground that there was no such plea in his plaint and therefore, the Trial Court cannot make out a third case.
21. Plaintiff, Sukdev Prasad claimed owner-ship on the basis of his long possession since before the abolition of zamindari over the property in dispute but he could not substantiate the same, whereas the defendants proved their title by way of registered sale deed in their favour and the lower appellate court rightly accepted their defence and dismissed the suit of the plaintiff.
22. The substantial question nos.2 and 3, which are relevant for this appeal are, therefore, decided holding that in absence of pleadings and proof of the plea of adverse possession, only on the basis of the evidence, the court cannot record the finding of the adverse possession in favour of either of the parties, more so when a contradictory plea on the basis of settlement of the land in favour of plaintiff at the time of abolition of zamindari was set-up by the plaintiff. The substantial question of law is decided holding that no evidence was led by the plaintiff to prove that the sale deed was not acted upon. This plea has been raised for the first time before this court and there was no such issue framed before the Court below. Once the house is occupied by a trespasser or a person inducted in permissive possession by the erstwhile landlord of the property he cannot be evicted without recourse to law, despite sale of the property by the landlord to subsequent purchaser. In such a situation it cannot be said that the sale deed executed has not been acted upon. No authority has been cited on this question nor any argument has been advanced by the counsel for the appellant, therefore, these questions are decided against the appellant.
27. Regarding Second Appeal No.475 of 1998 a perusal of the judgment of the Trial Court shows that it has recorded a clear finding that in the earlier suit No.92 of 1986, Sagar Mal, vendor of the plaintiffs, Smt. Neelam Singh and Smt. Noorjahan, did not made any averment that the Sukhdev Prasad is tenant in the disputed house. Also there is no recital of Sukdev Prasad as tenant in the disputed house. Plaintiffs have also not produced any document in the form of rent agreement, rent receipt, etc., to prove that the disputed house and sahen were ever given on rent. Sukdev Prasad, plaintiff, also failed to prove how Sukdev Prasad came into possession over the disputed house. Merely by sale of the property by Sagar Mal to Smt. Neelam Singh and Smt. Noorjahan, Sukdev Prasad cannot be treated as their tenant.
28. These findings of fact have not been reversed by the lower Appellate Court and relying uopn the statement of DW 5 Chadhat Singh, the suit of the plaintiffs was decreed by the lower Appellate Court. The burden of proof was also reversed in this regard by the lower appellate court finding that Sukdev Prasad failed to prove that he was doing business of fertilizer shop in the disputed house since 1965 and therefore, adverse inference is being drawn against him and he is deemed to be tenant of the house in dispute. These findings of the lower appellate court are clearly illegal, perverse and have been recorded without setting aside the finding of the trial court or even considering them at all. The findings of tenancy of Sukdev Prasad recorded by lower appellate Court are absolutely illegal and perverse and are hereby set aside.
29. The substantial question of law no.1 is decided holding that tenancy cannot be presumed in the absence of rent deed, rent receipts and recital in the sale deed which are basis of title and therefore, lower appellate court has legally erred in decreeing the Original suit no.293 of 1998 instituted by plaintiffs Smt. Neelam Singh and Smt. Noorjahan against Sukdev Prasad. Accordingly the Second Appeal No.169 of 1998 is hereby dismissed and Second Appeal No.475 of 1998 is allowed.
30. Parties shall bear their own costs.
Order Date :- 27.07.2018 SS